Through Superintendent Of Jail vs Unknown
2022 Latest Caselaw 70 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 4th DAY OF JANUARY, 2022

                                  BEFORE




                                                               .
           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                                      &
         HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                 CIVIL WRIT PETITION NO. 6145/2021
    BETWEEN:

    THALIA RAM @NAGU,




    S/O SH. HIRA LAL, AGED ABOUT 35 YEARS,
    R/O VILLAGE RAHI, PO DEVDHAR,
    TEHSIL BALI CHOWKI,
    POLICE STATION AUT,

    DISTRICT.MANDI, H.P.

    THROUGH SUPERINTENDENT OF JAIL,
    CENTRAL JAIL NAHAN.                 ....PETITIONER

    (BY MR. SUNIL KUMAR &
    PANKAJ SAWANT, ADVOCATES)



    AND




    1.    STATE OF HP,
          THROUGH ITS PRINCIPAL SECRETARY,
          DEPARTMENT OF HOME (JAIL),





          SHIMLA DISTT: SHIMLA- 171002 (H.P)
    2.    THE DIRECTOR GENERAL PRISON
          CORRECTIONAL SERVICES





          OFFICER AT SHIMLA-171009 (H.P)
    3.    INSPECTOR GENERAL OF PRISONS
          & CORRECTIONAL SERVICES,
          HIMACHAL PRADESH, SHIMLA-171009
    4.    THE SUPERINTENDENT OF JAIL,
          MODEL CENTRAL JAIL NAHAN,
          DISTRICT SIRMOUR. (H.P)         ...RESPONDENTS
    (MR. ASHOK SHARMA, A.G.
    WITH MR. RAJINDER DOGRA,SR. ADDL. A.G.,
    MR. SHIV PAL MANHANS &
    MR. VINOD THAKUR, ADDL. A.GS.)
    __________________________________________________________________




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                                         2



                 This petition coming on for admission after notice this

    day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the

    following:




                                                                 .

                 ORDER

The request made by the petitioner for releasing him

on parole has been turned down by the respondents constraining

him to file the instant petition for grant of the following

substantive reliefs:

"i) that this Hon'ble Court may kindly be pleased to issue writ in the nature of certiorari, thereby quash and set aside

the Annexure P-2 dated 9.4.2021 in the interest of justice

and fair play.

ii) that this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus, thereby directing the

respondents to release the petitioner on parole for the period of 28 days in the facts and circumstances of the

present case and thereby allow him to visit his home so that he can meet with his family."

2. The only ground for rejecting the request of the

petitioner for releasing him on parole is that he has been

convicted for offences punishable under sections 366, 364, 302

and 201 of the Indian Penal Code and under Section 3 of the SC

& ST Act and sentenced to undergo life imprisonment and more

over the complainant, local police as well as inhabitants of the

locality have objections to the petitioner being released on parole.

3. We have heard the learned counsel for the parties and

have also gone through the material placed on record.

4. It is more than settled that the grant of remission or

.

parole is not a right vested with the prisoner. It is a privilege

available to the prisoner on fulfilling certain conditions. This is a

discretionary power which has to be exercised by the authorities

conferred with such powers under the relevant rules/regulations.

The Court cannot exercise these powers, though once the powers

5.

r to are exercised, the Court may hold that the exercise of powers is

not in accordance with rules.

The Hon'ble Supreme Court has considered in detail

the nature, object, purpose and parameters for grant of parole

subject to which parole can be granted, in Asfaq versus State of

Rajasthan and others, (2017) 15 SCC 55, wherein it was

observed as under:

"14. Furlough, on the other hand, is a brief release from the

prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by

the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.

15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society.

Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must

.

receive due weightage while they are undergoing sentence of imprisonment.

16. This Court, through various pronouncements, has laid

down the differences between parole and furlough, few of which are as under:

(i) Both parole and furlough are conditional release.

(ii) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.

(iii) Duration of parole extends to one month whereas in the

case of furlough it extends to fourteen days maximum.

(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.

(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the

computation of the term of parole, whereas it is vice versa

in furlough.

(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society. {See State of Maharashtra and Another v. Suresh Pandurang Darvakar (2006) 4 SCC 776; and State of Haryana and Others v. Mohinder Singh, (2000) 3 SCC 394.

17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social

ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely

.

accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognize

reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not

only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts

have right to breathe fresh air, albeit for periods. These

gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of

the society and, therefore, are in public interest.

18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main

purpose of such provisions is to afford to them an

opportunity to solve their personal and family problems and to enable them to maintain their links with society.

Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they

lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.

19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be

.

kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual

offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should

not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great

number of crimes are committed by the offenders who have

been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have

also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a

crime or he is showing tendency to reform himself to

become a good citizen.

20. Thus, not all people in prison are appropriate for grant

of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.

21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the

benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render

.

it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having

perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It

is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to

the society. Naturally enough, the authorities would be

anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the

furlough leave granted to him by way of a measure of penal reform.

22. Another vital aspect that needs to be discussed is as to

whether there can be any presumption that a person who

is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would

be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorized as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would

indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be

.

granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been

convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their

cases on the parameters of god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc.

23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of

its prisons and services and recourse made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every

citizen a reasonably dignified life. If a person commits any

crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of

those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See - Sunil Batra (II) v. State (UT of Delhi) (1980) 3 SCC 488 , Maneka Gandhi v. Union of India (1978) 1 SCC 248 and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi, (1978) 4 SCC 104.

24. It is also to be kept in mind that by the time an application for parole is moved by a prisoner, he would

have spent some time in the jail. During this period, various reformatory methods must have been applied. We can take judicial note of this fact, having regard to such reformation facilities available in modern jails. One would know by this time as to whether there is a habit of relapsing into crime in

.

spite of having administered correctional treatment. This habit known as "recidivism" reflects the fact that the correctional therapy has not brought in the mind of the

criminal. It also shows that criminal is hardcore who is beyond correctional therapy. If the correctional therapy has not made in itself, in a particular case, such a case can be

rejected on the aforesaid ground i.e. on its merits."

6. It is evidently clear from the aforesaid judgment that

the Hon'ble Supreme Court itself emphasized on the aspect of

rehabilitation, continuity of life and constructive hopes for

convicts and prisoners and for the reformation even while they

are undergoing incarceration.

7. Judged in light of the aforesaid exposition of law, the

Court no doubt has to take a humanistic approach while

granting parole so as to afford the convict an opportunity to solve

his personal and family problems and enable him to maintain his

links with the society, but nonetheless it cannot be ignored that

the petitioner belongs to the same village as that of the

complainant and we can take judicial notice of the fact that the

villages in Himachal Pradesh are small and generally have

population not exceeding 100 people and there is bound to be a

threat perception amongst the people of the village, more

particularly family of the complainant.

8. At this stage, it would be relevant to take note of the

.

report submitted by the SHO, Police Station, Aut to the

Superintendent of Police, Mandi, which reads as under:

"It is submitted regarding office work that your office letter No.13327 dated 13.02.2021, convict Thalia Ram s/o Sh. Heera Lal, Village Rahi, P.O. Devdhar, Tehsil Balichowki, Police Station Aut, District Mandi (H.P) regarding 28 days

parole, has been received in this Police Station alongwith enclosure of written parole application of Convict Thalia Ram, which has been verified by HHC Birbal Singh,

No.664. During verification, HHC Birbal Singh No.664

inquired the Gram Panchayat Pradhan and Local Ward Member and has stated in his report that there is chance of quarrel. Because the houses of the victim party and the

convict Thalia Ram are nearby. In this connection, the statements of victim party have been recorded and they

have stated in their statements that they have threat of life, if the parole is granted to the convict Thalia Ram. The local

inhabitants and the victim party have raised objection for the release of convict Thalia Ram on parole. If the parole is

granted to Convict Thalia Ram, there might be chances of untoward incident and quarrel, therefore the local police has objection, if convict Thalia Ram is released. The report is submitted please."

9. The threat perception as expressed by the

complainant party and other residents of the village and even the

police cannot be said to be totally ill-founded and this view is

buttressed by the report submitted by the HHC Birbal Singh,

Police Post Balichowki, which reads as under:-

"Convict Thalia Ram s/o Sh. Heera Lal, Village Rahi, P.0. Devdhar, Tehsil Balichowki, Police Station Aut, District

.

Mandi (H.P), who is serving life imprisonment at Model Central Jail Nahan, has applied for parole. The parole application of the parole has been verified by Honorary

Head Constable by visiting Thalia Ram's Village. The reports of Ward Member, Gram Panchayat Pradhan of Gram Panchayat Devdhar and the statement of the father

of the victim have been recorded and received, they have stated in their reports that there might be chances of untoward incident and unrest, if the parole of convict

Thalia Ram is granted. Therefore, the inquiry was initiated

in the village of convict Thalia Ram and after inquiry, it has been found that Convict Thalia Ram is a quarrelsome person and there is a chance of quarrel between victim's

family and Thalia Ram's family. Therefore, according to the reports of Pradhan & Member of Gram Panchayat Devdhar and inquiry of victim's family, there is objection, if the

convict Thalia Ram is released. Therefore, report is

submitted please."

10. In addition thereto, even the ward members have

clearly opined that since complainant and the petitioner belong to

the same village, there is every likelihood of wrangle between

them.

11. Last but not the least, the Court cannot ignore the

apprehension of the father of the victim, who has given statement

to the following effect:

"It is stated that I Mani Ram, s/o Sh. Delu Ram, Village Rahi belongs to Schedule Caste (Koli). My daughter Huma Devi, who has been raped and murdered by Thalia Ram alias Nagu s/o Sh. Hira Lal Village Rahi, who belongs to Rajput (Swaran) Caste. I have a life threat from him, he may kill me and my

.

family. We and Thalia Ram live in same Village, which can

cause quarrel and brawl at any time. Thus, I request that Thalia Ram alias Nagu should not be granted parole leave. I

shall be highly thankful to you. This is my statement, which has been written according to what I said."

12. Learned counsel for the petitioner would then state

that this Court in a number of cases has already released many

convicts on parole even when they have been convicted under

Sections 302 IPC. However, we find no force in this contention for

the simple reason that each case is to be decided on its own facts

and circumstances.

13. For the reasons stated above and in view of the

peculiar facts and circumstances of the case, we find no ground

to accede to the request of the petitioner to release him on parole.

Consequently, the instant petition is dismissed. However, this

order shall not prevent the petitioner from filing a fresh petition

for release on parole in the changed circumstances.

                                           (Tarlok Singh Chauhan)
                                                   Judge


                                           (Chander Bhusan Barowalia)
    4.1.2022                                      Judge
    (pankaj)